Scibetta v. Scibetta-Galluzzo

• Decision Date: 10 November 1987
• Docket Number: A,SCIBETTA-GALLUZZ
• Citation: 521 N.Y.S.2d 584,134 A.D.2d 823
• Parties: Salvatore SCIBETTA, Respondent, v. Marie L.ppellant.
• Court: New York Supreme Court — Appellate Division

Page 584

521 N.Y.S.2d 584

134 A.D.2d 823

Salvatore SCIBETTA, Respondent, v. Marie L. SCIBETTA-GALLUZZO, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Nov. 10, 1987.

Catharine M. Venzon, Buffalo, for appellant.

Vincent P. Ginestre, North Tonawanda, for respondent.

Before DILLON, P.J., and DOERR, BOOMER, PINE and LAWTON, JJ.

MEMORANDUM:

The parties were married on January 31, 1953. On July 27, 1978, they entered into a property settlement agreement providing, inter alia: "ALIMONY. The Husband shall pay to the Wife the sum of Fifty Dollars ($50.00) per week for her support and maintenance." The agreement is silent as to the effect of the wife's remarriage on the husband's support obligations. A divorce was granted to the wife upon the husband's default on September 6, 1978. The agreement of July 27, 1978 was incorporated by reference, but not merged, into the final decree of divorce.

The husband fully complied with the terms of the agreement until the week of July 7, 1986. The wife remarried on July 12, 1986. On July 28, 1986, the husband petitioned to modify the divorce decree by eliminating the provision for alimony. Family Court ordered that the modification be granted eliminating alimony "to the date of the petition."

It is settled that an agreement requiring a spouse to support a prior spouse after remarriage is enforceable and is not against public policy (see, Gush v. Gush, 9 A.D.2d 815, 192 N.Y.S.2d 678; Alexandre v. Davis, 90 Misc.2d 368, 394 N.Y.S.2d 757, mod. on other grounds 57 A.D.2d 764, 394 N.Y.S.2d 559, appeal dismissed 42 N.Y.2d 965, 398 N.Y.S.2d 148, 367 N.E.2d 654; Collins v. Johnson, 72 Misc.2d 1034, 341 N.Y.S.2d 214, affd. 75 Misc.2d 489, 348 N.Y.S.2d 136). It is, however, a matter of public policy that a spouse, upon remarriage, may not compel support from a former spouse (Jacobs v. Patterson, 112 A.D.2d 402, 492 N.Y.S.2d 59; see, e.g., Davis v. Welber, 278 App.Div. 36, 103 N.Y.S.2d 239; Gush v. Gush, supra; see also, Domestic Relations Law § 248; Scheinkman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 14, Domestic Relations Law C. 248:1 at 817-818). Thus, unless the agreement between the parties specifies that the support obligation is to survive the former spouse's remarriage, such an obligation should not be assumed (Jacobs v. Patterson, supra; Graham v. Hunter, 266 App.Div. 576, 42 N.Y.S.2d 717, lv. denied 278 App.Div. 823; Griffin v. Faubel, 64 Misc.2d 653, 315 N.Y.S.2d 243). Here,...